Possessing a Medical Marijuana Card Does Not Make You A Prohibited Person

Recently, our friends over at MCRGO published an article titled Medical Marijuana, Gun Ownership, and CPLs. In the article, they attempted to tackle the complex interaction of state and federal law as they relate to firearm and marijuana possession and licensing in Michigan.

While the article ultimately avoids providing any definitive answers, it does suggest that federal law may get in the way of licensing Michigan Medical Marijuana Act cardholders, and specifically says that one is “stepping into a gray area” when you fill out state forms for a License to Purchase a pistol or a Concealed Pistol License, and have to answer the “marijuana question”. We disagree.

Before we go any further, there is no disagreement that federal law (18 U.S.C. § 922(g)(3)) prohibits anyone “who is an unlawful user of or addicted to any controlled substance”, which applies to allmarijuana use, from possessing a firearm or ammunition. This includes anyone acting lawfully under state law. However, it has been argued by many that mere possession of a card does not mean one is actually a user, as well as the above licenses are state licenses, not federal, which allows the conversation to continue.

The first thing worth mentioning is that 922(g)(3) is not the relevant federal statute for selling firearms, 922(d)(3) is, and it includes an additional “having reasonable cause” clause that (g)(3) does not. A subtle yet critical difference.

In the article, MCRGO states that “The ATF takes the position that anyone with a MMMA card is probably using and therefore not allowed to possess a firearm”. This is false. The ATF, in an Open Letter from 2011, acknowledged the difference described above between 922(d) and 922(g), and said that a federally licensed dealer may not sell to anyone who they know possesses a medical marijuana card as this knowledge satisfies the “reasonable cause” portion of 922(d) . They did not say that a cardholder could not possess a firearm under 922(g), which does not contain such a clause.

The best case law we have on the matter is a ruling from the 9th Circuit Court of Appeals from August of this year (2016). In Wilson v. Lynch, the 9th Circuit also said the exact opposite of MCRGO. On pg. 14 of the ruling, the Court said “Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter bar only the sale of firearms to Wilson–not her possession of firearms.” This is not our opinion, that is a direct quote from the Court.

In essence, there is a fundamental difference in the operation of federal law as it applies to the purchasing of firearms versus the possession of firearms. The ATF and the 9th Circuit Court of Appeals only narrowly applied federal law relating to sales, not possession, to cardholders who are not users. This is why federal law and the federal form 4473, which asks about marijuana and other controlled substances, do not apply to state licensing that requires compliance with federal possession laws (read 922(g) not (d)), such as Michigan’s License to Purchase a pistol or CPL.

This brings us to the “marijuana question” that MCRGO asserts creates “grey area” when filling out certain forms when applying for a License to Purchase or a CPL in Michigan. We don’t know how to say this other than: There is no “marijuana question” that must be answered on Michigan’s firearm licensing application forms. It just doesn’t exist.

Michigan law specifically enumerates the criteria for determining whether or not someone can get a License to Purchase a pistol or a CPL in MCL 28.422 and MCL 28.425b respectively. The statutes also dictate that the forms for application shall be provided by the State Police, and licensing authorities are preempted from deviating in any manner in a separate Act. In fact, this is why we have had to correct some licensing authorities that have illegally included their own separate form on the matter, in addition to the forms required by the State.

In neither 28.422, nor 28.425b is there language comparable to the federal statutes outlined above, nor any language that requires compliance with them. The only relevant parts apply to someone who has been found guilty of violating the state’s controlled substance laws, which of course should not happen with a cardholder, let alone someone who does not use controlled substances.

The MCRGO article also suggests that since both of the mentioned state licenses require the applicant to pass a federal NICS background check, the above federal laws are still in play. This also is inaccurate. State licensing for medical marijuana is not included in what NICS looks at because, again, simply being a cardholder does not make you a prohibited firearms possessor under federal law, as the Wilson ruling states.

Lastly, Section 4 of the Michigan Medical Marihuana Act (MCL 333.26424) protects cardholders from being “denied any right or privilege”. Note, this Act is an “initiated law”, which means it can not be repealed, preempted, or modified without a supermajority (75% of the house and senate). So, even if a Michigan licensing authority wanted to deny a cardholder a License to Purchase a pistol or a CPL, they would be statutorily prohibited from doing so.

In summary:

Federal law for sales (922(d)) and possession (922(g)) contain different criteria.

Federal law has been construed so as to prohibit firearm sales to a MMMA cardholder, if the seller has knowledge of the card.

Federal law has NOT been construed so as to prohibit possession for people who simply have a MMMA card.

LTP/CPL applications are based on state law, which do not allow for this question.

State law prevents Michigan authorities from denying any rights or privileges to cardholders, which includes LTPs/CPLs.

Bottom line: when someone asks if they can still get a License to Purchase a pistol or a CPL in Michigan if they have a MMMA card, the answer is - Yes! Yes, you can.